EXHIBIT 4.8
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FORM OF
GUARANTEE AGREEMENT
between
FIRST HAWAIIAN, INC.,
as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
relating to
First Hawaiian Capital I
Dated as of _____ __, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Trust Indenture Act . . . . . . . . . . . . 5
Section 2.1 Trust Indenture Act; Application . . . . . . . . . 5
Section 2.2 List of Holders . . . . . . . . . . . . . . . . . . 5
Section 2.3 Reports by the Guarantee Trustee . . . . . . . . . 5
Section 2.4 Periodic Reports to the Guarantee Trustee . . . . . 6
Section 2.5 Evidence of Compliance with Conditions Precedent . 6
Section 2.6 Events of Default; Waiver . . . . . . . . . . . . . 6
Section 2.7 Event of Default; Notice . . . . . . . . . . . . . 6
Section 2.8 Conflicting Interests . . . . . . . . . . . . . . . 7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee . . . . 7
Section 3.1 Powers and Duties of the Guarantee Trustee . . . . 7
Section 3.2 Certain Rights of Guarantee Trustee . . . . . . . . 8
Section 3.3 Compensation; Indemnity; Fees . . . . . . . . . . . 10
ARTICLE IV
Guarantee Trustee . . . . . . . . . . . . 11
Section 4.1 Guarantee Trustee; Eligibility . . . . . . . . . . 11
Section 4.2 Appointment, Removal and Resignation of the
Guarantee Trustee . . . . . . . . . . . . . . . . 11
ARTICLE V
Guarantee . . . . . . . . . . . . . . 12
Section 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . 12
Section 5.2 Waiver of Notice and Demand . . . . . . . . . . . . 12
Section 5.3 Obligations Not Affected . . . . . . . . . . . . . 12
Section 5.4 Rights and Obligations of Holders . . . . . . . . . 13
Section 5.5 Guarantee of Payment . . . . . . . . . . . . . . . 14
Section 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . 14
Section 5.7 Independent Obligations . . . . . . . . . . . . . . 14
ARTICLE VI
Covenants and Subordination . . . . . . . . . . 15
Section 6.1 Subordination . . . . . . . . . . . . . . . . . . . 15
Section 6.2 Pari Passu Guarantees . . . . . . . . . . . . . . . 15
ARTICLE VII
Termination . . . . . . . . . . . . . . 15
Section 7.1 Termination . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VIII
Miscellaneous . . . . . . . . . . . . . 16
Section 8.1 Successors and Assigns . . . . . . . . . . . . . . 16
Section 8.2 Amendments . . . . . . . . . . . . . . . . . . . . 16
Section 8.3 Notices . . . . . . . . . . . . . . . . . . . . . 16
Section 8.4. Benefit . . . . . . . . . . . . . . . . . . . . . 17
Section 8.5. Governing Law . . . . . . . . . . . . . . . . . . 17
Section 8.6. Counterparts . . . . . . . . . . . . . . . . . . . 17
GUARANTEE AGREEMENT, dated as of ________ _____ , 1997, between
FIRST HAWAIIAN, INC., a Delaware corporation (the "Guarantor"), having its
principal office at First Hawaiian Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000 and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Securities (as
defined herein) of First Hawaiian Capital I, a Delaware statutory business
trust (the "Issuer Trust").
Recitals of the Corporation
WHEREAS, pursuant to the Declaration (as defined herein), the Trust
issued $100,000,000 aggregate liquidation amount of its 8.343% Capital
Securities, liquidation amount $1,000 per Capital Security (the "Old Capital
Securities") representing undivided beneficial ownership interests in the
assets of the Trust and having the terms set forth in the Declaration;
WHEREAS, the Old Capital Securities issued by the Trust and the
proceeds thereof, together with the proceeds from the issuance of the Trust's
Common Securities (as defined below), were used to purchase the Debentures
(as defined in the Declaration) of the Guarantor;
WHEREAS, pursuant to the Declaration, the Trust issued 3,093 common
securities, having a liquidation amount of $1,000 per common security,
designated the 8.343% Common Securities (the "Common Securities");
WHEREAS, as an incentive for the Holders to purchase the Old
Capital Securities, the Guarantor irrevocably and unconditionally agreed, to
the extent set forth in that certain Guarantee Agreement, dated as of June
30, 1997 (the "Old Guarantee"), among the Guarantor and the Guarantee
Trustee, for the benefit of the Holders of the Old Capital Securities and the
Common Securities to pay to the Holders of the Old Capital Securities and the
Common Securities the Guarantee Payments (as defined therein) and to make
certain other payments on the terms and conditions set forth therein;
WHEREAS, pursuant to that certain Registration Rights Agreement,
dated as of June 30, 1997 (the "Registration Rights Agreement"), among the
Guarantor, the Trust and the Initial Purchasers named therein, the Guarantor
and the Trust agreed that if the Guarantor and the Trust file a registration
statement (the "Registration Statement") to exchange the Old Capital
Securities for a like amount of new capital securities (the "New Capital
Securities"; together with the Old Capital Securities, the "Capital
Securities"), then the Guarantor and the Trust will simultaneously exchange
the Old Guarantee for the Guarantee for the benefit of the Holders of the
Capital Securities and the Common Securities;
WHEREAS, on ________ , 1997 the Guarantor and the Trust filed the
Registration Statement and the Registration Statement, as amended, was
declared effective on __________ , 1997;
WHEREAS, pursuant to the Registration Rights Agreement, the
Guarantor and the Trust wish to exchange the Old Guarantee for the Guarantee;
WHEREAS, the Guarantee will be substantially identical to the Old
Guarantee except that the Guarantee will be registered pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), and the Guarantee will not contain provisions
restricting transfer in the absence of registration under the Securities Act;
and
WHEREAS, as an incentive for the Holders to retain the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth herein, to pay to the Holders of the Capital
Securities and the Common Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of the Holders.
ARTICLE 1
Definitions
Section 1.1 Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles;
(d) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Guarantee Agreement; and
(e) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Guarantee Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor
or the Executive Committee of the board of directors of the Guarantor (or any
other committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the
Guarantor (or such committee), comprised of two or more members of the board
of directors of the Guarantor or officers of the Guarantor, or both.
"Capital Securities" has the meaning specified in the recitals to
this Guarantee Agreement.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement or (ii) a default by
the Guarantor in any other obligation hereunder that remains unremedied for
30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: (i) any accumulated and
unpaid Distributions (as defined in the Trust Agreement) required to be paid
on the Trust Securities, to the extent the Issuer Trust shall have funds on
hand available therefor at such time; (ii) the Redemption Price (as defined
in the Trust Agreement) with respect to any Trust Securities called for
redemption by the Issuer Trust, to the extent the Issuer Trust shall have
funds on hand available therefor at such time; and (iii) upon a voluntary or
involuntary dissolution, winding-up or liquidation of the Issuer Trust,
unless Debentures are distributed to the Holders, the lesser of (a) the
Liquidation Distribution (as defined in the Trust Agreement) with respect to
the Trust Securities, and (b) the amount of assets of the Issuer Trust
remaining available for distribution to Holders on liquidation of the Issuer
Trust after satisfaction of liabilities to creditors of the Issuer Trust as
required by applicable law.
"Guarantee Trustee" means The First National Bank of Chicago,
solely in its capacity as Guarantee Trustee and not in its individual
capacity, until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee Agreement,
and thereafter means each such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of
this Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of
any Trust Securities; provided, however, that in determining whether the
holders of the requisite percentage of Trust Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee; and provided further, that in determining whether the
Holders of the requisite liquidation amount of Trust Securities have voted on
any matter provided for in this Guarantee, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Trust
Securities remain in the form of one or more Global Certificates (as defined
in the Trust Agreement), the term "Holders" shall mean the holder of the
Global Certificate acting at the direction of the beneficial owners of the
Capital Securities.
"Indenture" means the Junior Subordinated Indenture, dated as of
June 30, 1997, between First Hawaiian, Inc. and The First National Bank of
Chicago, as trustee, as the same may be modified, amended or supplemented
from time to time pursuant to which the Debentures are to be issued to the
Property Trustee (as defined in the Trust Agreement) of the Issuer Trust.
"Issuer Trust" has the meaning specified in the first paragraph of
this Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Trust Securities" means,
except as provided by the Trust Indenture Act, Trust Securities representing
more than 50% of the aggregate Liquidation Amount (as defined in the Trust
Agreement) of all Trust Securities then Outstanding (as defined in the Trust
Agreement).
"Officer's Certificate" means a certificate signed by the Chairman,
a Vice Chairman of the Board of Directors of the Guarantor, the President,
one of the Vice Presidents of the Guarantor, or the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Guarantor, and
delivered to the Guarantee Trustee. Any Officer's Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement by each officer signing the Officer's Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, company, limited liability company, trust, business trust,
unincorporated association, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any Senior Vice President, any Vice President, any Assistant Vice President,
the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Trust Officer or Assistant Trust Officer or any other officer
of the Corporate Trust Office of the Guarantee Trustee and also means, with
respect to a particular matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of
the Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Guarantee Agreement was executed;
provided, however, that if the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means the Capital Securities in the Common
Securities.
"Vice President," when used with respect to the Guarantor, means
any duly appointed Vice President, whether or not designated by a number or a
word or words added before or after the title "Vice President."
ARTICLE 2
Trust Indenture Act
Section 2.1 Trust Indenture Act; Application.
Except as otherwise expressly provided herein, the Trust Indenture
Act shall apply as a matter of contract to this Guarantee Agreement for
purposes of interpretation, construction and defining the rights and
obligations hereunder, and this Guarantee Agreement, the Guarantor and the
Guarantee Trustee shall be deemed for all purposes hereof to be subject to
and governed by the Trust Indenture Act to the same extent as would be the
case if this Guarantee Agreement were qualified under that Act on the date
hereof. Except as otherwise expressly provided herein, if and to the extent
that any provision of this Guarantee Agreement limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section 2.2 List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of
each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders (a "List of Holders") as
of a date not more than 15 days prior to the delivery thereof, and (b) at
such other times as the Guarantee Trustee may request in writing, within 30
days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession
or control of the Guarantor and has not otherwise been received by the
Guarantee Trustee in its capacity as such. The Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Guarantee Trustee shall comply with the requirements of
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
Not later than 60 days following May 15 of each year, commencing
May 15, 1998, the Guarantee Trustee shall provide to the Holders such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture Act.
If this Guarantee Agreement shall have been qualified under the Trust
Indenture Act, the Guarantee Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the
Holders such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314 of the Trust Indenture Act, in the form, in the
manner and at the times required by Section 314 of the Trust Indenture Act,
provided that such documents, reports and information shall not be required
to be provided to the Securities and Exchange Commission unless this
Guarantee Agreement shall have been qualified under the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be
given in the form of an Officer's Certificate.
Section 2.6 Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, by vote, on behalf of the Holders of all the Capital
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist,
and any default or Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Guarantee Agreement, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee, transmit by mail, first class postage prepaid, to the
Holders, notice of any such Event of Default, unless such Event of Default
has been cured before the giving of such notice, provided that, except in the
case of a default in the payment of a Guarantee Payment, the Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
Section 2.8 Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE 3
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment
to act as Guarantee Trustee hereunder. The right, title and interest of the
Guarantee Trustee, as such, hereunder shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee
Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(1) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement (including pursuant to Section 2.1), and
the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Guarantee Agreement (including pursuant to
Section 2.1); and
(2) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made.
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee, under this Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this Guarantee
Agreement shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers,
if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officer's Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its or their employees. The Guarantee
Trustee shall have the right at any time to seek instructions concerning
the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder unless such Holder shall have
provided to the Guarantee Trustee such adequate security and indemnity
as would satisfy a reasonable person in the position of the Guarantee
Trustee against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to the Guarantee Trustee shall be construed to be a duty to act in accordance
with such power and authority.
Section 3.3 Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it hereunder as may
be agreed by the Guarantor and the Guarantee Trustee from time to time
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Guarantee Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with any provision of this Guarantee Agreement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, wilful misconduct or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this
Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee
Trustee.
ARTICLE 4
Guarantee Trustee
Section 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such, and that
has at the time of such appointment securities rated in one of the three
highest rating categories by a nationally recognized statistical rating
organization and a combined capital and surplus of at least $50,000,000,
and shall be a corporation meeting the requirements of Section 310(a) of
the Trust Indenture Act and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of its supervising or examining authority,
then, for the purposes of this Section 4.1 and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be
appointed or removed at any time by the Guarantor.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by giving
written notice thereof to the Holders and the Guarantor and by appointing a
successor Guarantee Trustee.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed and shall have
accepted such appointment. No removal or resignation of a Guarantee Trustee
shall be effective until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor and, in the case
of any resignation, the resigning Guarantee Trustee.
(d) If the Guarantee Trustee shall resign, be removed or become
incapable of acting as Guarantee Trustee and a replacement shall not be
appointed prior to such resignation or removal, or if a vacancy shall occur
in the office of Guarantee Trustee for any reason, and no Successor Guarantee
Trustee shall have been appointed and accepted appointment as provided in
this Section 4.2 within 60 days after delivery to the Holders and the
Guarantor of a notice of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor Guarantee Trustee.
ARTICLE 5
Guarantee
Section 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer
Trust may have or assert, except the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
Trust to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands. Notwithstanding
anything to the contrary herein, the Guarantor retains all of its rights
under the Indenture to (i) extend the interest payment period on the
Debentures and the Guarantor shall not be obligated hereunder to make any
Guarantee Payments during any Extended Interest Payment Period (as defined in
the Indenture) with respect to the Distributions (as defined in the
Declaration) on the Securities, and (ii) change the maturity date of the
Debentures to the extent permitted by the Indenture.
Section 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise (other
than by Act (as defined in the Trust Agreement) of the Holders), of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of
all or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures as provided in the Indenture),
Redemption Price (as defined in the Indenture), Liquidation Distribution
or any other sums payable under the terms of the Capital Securities or
the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Capital Securities, or any action on the part of the Issuer Trust
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer Trust or any
of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor
(other than payment of the underlying obligation), it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights and Obligations of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in Liquidation Amount of the Trust Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) in the event that the Guarantor has failed to
make a Guarantee Payment, any Holder may, subject to Section 6.2, institute a
legal proceeding directly against the Guarantor to enforce its rights under
this Guarantee Agreement without first instituting a legal proceeding against
the Guarantee Trustee, the Issuer Trust or any other Person.
Section 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer Trust) or upon the distribution of Debentures
to Holders as provided in the Trust Agreement.
Section 5.6 Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Issuer Trust in respect of any amounts paid to the
Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts are due and
unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the
Capital Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE 6
Covenants and Subordination
Section 6.1 Subordination.
The obligations of the Guarantor under this Guarantee Agreement
will constitute unsecured obligations of the Guarantor and will rank
subordinate and junior in right of payment to all Senior Indebtedness (as
defined in the Indenture) of the Guarantor to the extent and in the manner
set forth in the Indenture with respect to the Debentures, and the provisions
of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness (as defined in the Indenture)
of the Guarantor.
Section 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement
shall rank pari passu with the obligations of the Guarantor under (i) any
similar guarantee agreements issued by the Guarantor on behalf of the holders
of preferred or capital securities issued by any Issuer Trust (as defined in
the Indenture); (ii) the Indenture and the Securities (as defined therein)
issued thereunder; and (iii) any other security, guarantee or other agreement
or obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
ARTICLE 7
Termination
Section 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force
and effect upon (i) full payment of the Redemption Price (as defined in the
Trust Agreement) of all Capital Securities, (ii) the distribution of
Debentures to the Holders in exchange for all of the Capital Securities, or
(iii) full payment of the amounts payable in accordance with Article IX of
the Trust Agreement upon liquidation of the Issuer Trust. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will
be reinstated, as the case may be, if at any time any Holder is required to
repay any sums paid with respect to Capital Securities or this Guarantee
Agreement.
ARTICLE 8
Miscellaneous
Section 8.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives
of the Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor that is permitted under Article VIII
of the Indenture and pursuant to which the successor or assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder, and any purported assignment other than
in accordance with this provision shall be void.
Section 8.2 Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Holders in any material respect (in which case no consent of
the Holders will be required), this Guarantee Agreement may only be amended
with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities. The provisions of Article VI
of the Trust Agreement concerning meetings, and actions taken by written
consent of the Holders shall apply to the giving of such approval.
Section 8.3 Notices.
(a) Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, by facsimile or first class mail as
follows:
(i) if given to the Guarantor, to the address or facsimile number
set forth below or such other address or facsimile number as the
Guarantor may give notice to the Guarantee Trustee and the Holders:
First Hawaiian, Inc.
First Hawaiian Center
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
(ii) if given to the Guarantee Trustee, at the address or facsimile
number set forth below or such other address or facsimile number as the
Guarantee Trustee may give notice to the Guarantor and the Holders:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
Facsimile: (000) 000-0000
(iii) if given to any Holder, in the manner set forth in Section
10.8 of the Trust Agreement.
(b) All notices hereunder shall be deemed to have been given when
received in person, by facsimile with receipt confirmed, or mailed by first
class mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver, provided
that any notice given as provided in Section 8.3(a)(iii) shall be deemed to
have been given at the time specified in Section 10.8 of the Trust Agreement.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Trust Securities.
Section 8.5. Governing Law.
This Guarantee Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Section 8.6. Counterparts.
This Guarantee Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
Agreement to be duly executed all as of the day and year first above written.
FIRST HAWAIIAN, INC.,
as Guarantor
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By:
Name:
Title:
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
------------------- -------------------
310(a). . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b). . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c), 2.8
310(c). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a). . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b). . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a). . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b). . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a). . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c). . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e). . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.5, 3.2
314(f). . . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.2
315(a). . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b). . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c). . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d). . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a). . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.6, 5.4
316(b). . . . . . . . . . . . . . . . . . . . . . . . . 5.3
316(c). . . . . . . . . . . . . . . . . . . . . . . . . 8.2
317(a). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b). . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a). . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b). . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c). . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
-------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
